F I L E D

United States Court of Appeals

Tenth Circuit

July 21, 2005

PUBLISH
UNITED STATES COURT OF APPEALS

PATRICK FISHER
Clerk

TENTH CIRCUIT
UNITED STATES OF AMERICA,
v.

Plaintiff-Appellant,

No. 04-3424

LAWRENCE D. NIELSON,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 04-CR-40068-01-RDR)
Patty Merkamp Stemler, Chief, Criminal Appellate Section, United States
Department of Justice, Washington D.C. (Eric F. Melgren, United States
Attorney, District of Kansas and Gregory G. Hough, Assistant United States
Attorney, District of Kansas, with her on the briefs) for Plaintiff-Appellant.
Kirk C. Redmond, Federal Public Defender, Topeka, Kansas (David J. Phillips,
Federal Public Defender and Ronald E. Wurtz, Assistant Federal Public Defender
for the District of Kansas, Topeka, Kansas on the brief) for Defendant-Appellee.
Before SEYMOUR, HOLLOWAY, and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.

We must decide whether law enforcement officers violated Lawrence D.

Nielsons Fourth Amendment rights when they executed a search warrant that
authorized them to enter his home without complying with the Fourth
Amendments knock and announce requirement. Finding under the totality of the
circumstances that officers were obligated to knock and announce prior to
entering, the district court suppressed evidence seized during the search. Because
we take the district courts view that law enforcement officers failed to
demonstrate that they had an objectively reasonable suspicion that knocking and
announcing would be dangerous or futile, we AFFIRM.
I
Law enforcement officials received an anonymous Crime Stoppers report
that a person named Danny Mills or Danny Nielson possessed an automatic
weapon kept in the loft in his garage and possessed narcotics in a work bench in
the garage. Detective Eric Coffman, who is with the Junction City/Geary County
Drug Task Force, determined that Nielson resided at an address matching that
given by the tip. Coffman determined that Nielson had previously been arrested
in 1999 for possession of a firearm by a convicted felon and had pled no contest
to misdemeanor possession of marijuana. Relying on the tip and the
circumstances of the 1999 search, he sought a search warrant authorizing police
officers to search the residence without complying with the Fourth Amendments
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knock and announce requirement. Finding that probable cause existed to

support the search warrant with a no-knock exemption, a Geary County district
judge signed the warrant granting authority to the police to search the home of
Nielson and Caroline Vigil.
In executing the warrant the following morning at 4:45 a.m., police found
Nielson, unclad, and Vigil, clad in a bathrobe, in a bedroom. A loaded .45 caliber
handgun was found on the floor next to their bed, knives were on the night stand,
and seven other firearms were recovered from a closet safe, including assault
rifles. In the garage they found 25-millimeter military rounds, and an M21
artillery simulator. Detectives also seized small amounts of marijuana and
smoking devices found in the garage workbench and bedroom. Both Nielson and
Vigil were arrested.
In support of the application for a no-knock warrant, Detective Coffman
provided an affidavit reciting three facts to establish probable cause for the search
and to support reasonable suspicion for an exemption to the knock and announce
requirement. First, police conducted a search of Nielsons home pursuant to a
search warrant four years earlier. When executing the 1999 search, a loaded gun
was found on top of a laundry basket outside a master bedroom, although both
Nielson and Vigil were located between the kitchen and living room. That search
uncovered five weapons and marijuana which resulted in Nielson being charged
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with possession of a firearm by a convicted felon and with misdemeanor

possession of marijuana. Second, police received a Crime Stoppers anonymous
report in August 2003 that Nielson possessed an automatic weapon and narcotics
which were located in the garage. Third, detectives searched Nielsons garbage
which revealed marijuana seeds, and five round cloth patches which they
believed to have been used to clean firearms. In his affidavit, Coffman therefore
requested a no-knock search warrant for officers safety based on Mr. Nielsons
past history of possessing firearms and the potential for violence.
Before the district court, Nielson sought to suppress the evidence seized
pursuant to the search, arguing that executing the search at 4:45 a.m. without
knocking and announcing violated his constitutional rights. At the suppression
hearing, Detective Coffman testified that officers were concerned that Nielson
and Vigil might attempt to arm themselves if police knocked and announced.
Officers determined that the garage where the Crime Stoppers tip said an
automatic weapon and marijuana were located was connected to the house, but
they did not know if there was an interior passageway between the garage and the
house. Regarding the search more than four years prior, detectives testified that
placing a gun on a laundry basket was unusual, and speculated that Nielson had
handled the gun shortly before police entered, though Nielson did not resist and
did not threaten violence. Moreover, police noted that small amounts of
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marijuana for personal use are easily destroyed by flushing. Police thus feared
both violence and destruction of evidence.
After hearing this testimony, the district court concluded that it was clear
that the officers were obligated to knock and announce before entering Nielsons
home. The district court found that the facts presented to support reasonable
suspicion fell far short of providing reasons to believe Nielson would be violent
or attempt to destroy evidence when he had exhibited no prior violent behavior
and when he had not attempted to destroy evidence during the 1999 search.
Finding that Tenth Circuit precedent clearly established that Detective Coffmans
information was insufficient to support a no-knock execution to the search
warrant, the district court refused to apply the good faith doctrine under United
States v. Leon, 468 U.S. 897 (1984), and granted Nielsons motion to suppress the
evidence obtained during the search. The United States now appeals.
II
On appeal from a motion to suppress, we accept the district courts factual
findings unless they are clearly erroneous. United States v. Moore, 91 F.3d 96,
97 (10th Cir. 1996). When reviewing factual findings in the totality of the
circumstances, we view the evidence in the light most favorable to the prevailing
party. Id. Because they are questions of law, we review de novo the
reasonableness of a search and seizure under the Fourth Amendment, as well as
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the district courts determinations with regard to exigent circumstances. United

States v. Dahlman, 13 F.3d 1391, 1398 (10th Cir. 1993).
We must begin any examination of Fourth Amendment limitations on noknock entries with two Supreme Court cases. The first, Wilson v. Arkansas, 514
U.S. 927 (1995), held that the common-law knock and announce principle forms
part of the Fourth Amendment reasonableness inquiry. Tracing deep into the
English Common law the history of the principle that a persons house is his
castle of defence and asylum, 3 W. Blackstone, Commentaries 288, the Supreme
Court concluded that the prohibition against the sovereigns breaking down doors
without first knocking and announcing was woven quickly into the fabric of
early American law. Id. at 932-933; see also, Miller v. United States, 357 U.S.
301, 313 (1958) (The requirement of prior notice of authority and purpose before
forcing entry into a home is deeply rooted in our heritage and should not be given
grudging application.). Not only is it part of our common law heritage, but
because the reasonableness of a search under the Fourth Amendment may depend
in part on the manner in which the search is executed, the Court reasoned: [W]e
have little doubt that the Framers of the Fourth Amendment thought that the
method of an officers entry into a dwelling was among the factors to be
considered in assessing the reasonableness of a search or seizure. Wilson, 514
U.S. at 934. The Court was quick to note, however, that inquiry into the
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reasonableness of an unannounced entry must be flexible. Id. at 934 (The Fourth

Amendments flexible requirement of reasonableness should not be read to
mandate a rigid rule of announcement that ignores countervailing law
enforcement interests.).
In the second case, Richards v. Wisconsin, 520 U.S. 385, 394 (1997), the
Court struck down the Wisconsin Supreme Courts conclusion that the knock and
announce requirement did not apply to felony drug cases because as a category
they all involved a high risk of harm to police officers and a threat of disposal of
drugs. Under the flexible approach announced in Wilson, the Court explained
that the knock-and-announce requirement could give way under circumstances
presenting a threat of physical violence or where police officers have reason to
believe that evidence would likely be destroyed if advance notice were given.
Id. at 391 (quotation omitted). Before law enforcement officers may enter a
dwelling without complying with the knock and announce requirement, they
must have a reasonable suspicion that knocking and announcing their presence,
under the particular circumstances, would be dangerous or futile, or that it would
inhibit the effective investigation of the crime by, for example, allowing the
destruction of evidence. Id. at 394. However, an officer must have an
objectively reasonable belief, and may not rely on subjective factors or hunches.
See United States v. Maden, 64 F.3d 1505, 1509 (10th Cir. 1995); United States
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v. Stewart, 867 F.2d 581, 584 (10th Cir. 1989) (examining whether the officers,
after considering the particular facts regarding the premises to be searched and
the circumstances surrounding the execution of the warrant, could reasonably
have decided that an urgent need existed for [a no-knock] entry into the
premises).
When reviewing a district courts suppression ruling, we must determine
whether the facts and circumstances of the particular entry justified dispensing
with the knock and announce requirement. Richards, 520 U.S. at 394. Because
[a] trial judge views the facts of a particular case in light of the distinctive
features and events of the community, Ornelas v. United States, 517 U.S. 690,
699 (1996), we owe due deference to the district courts evaluation of the factual
context in determining whether reasonable suspicion existed to justify a no-knock
entry. Despite our deferential standard of review, the government urges that the
totality of the circumstances demonstrates that the district court clearly erred in
making its findings. The district court found:
[T]here was a prior history of searching defendants residence without
violence or the destruction of evidence. When defendants residence was
searched in 1999, the officers knocked and announced before entering the
house. Defendant and Caroline Vigil were awake when the search was
conducted. Although they did not answer the door, there is no claim that
they attempted to destroy evidence or that they threatened the safety of the
officers. In addition, there is no evidence or indication that defendant or
his girlfriend had acted violently or threatened violence toward officers or
others since 1999. The only evidence referred to in the affidavit to support
a no-knock entry for the safety of the officers is the anonymous tip that
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defendant had automatic weapons in the loft of his garage approximately

seven weeks before the search was conducted.
Slip op. at 8. Based on these findings, the district court concluded that this case
was not close because no facts were alleged in the affidavit or existed in the
totality of the circumstances to justify a no-knock entry. We cannot conclude that
these factual findings are clearly erroneous.
Whether these facts are sufficient to support a determination with regard to
dangerous or exigent circumstances is a legal question we review de novo.
Dahlman, 13 F.3d at 1398. Search and seizure cases involve, by their very nature,
fact-dependent and case-specific inquiries. Thus, our inquiry into whether
exigent circumstances exist must rely on analogical reasoning from prior holdings
and prior circumstances, as well as a close look at the particular circumstances
law enforcement officers confronted in this case. Following the Supreme Court,
our prior holdings have focused on the criminal history and past violent behavior
of the defendant as well as the conduct under investigation with particular
emphasis on trafficking in narcotics with possession of a firearm. See United
States v. Ramirez, 523 U.S. 65, 68-69 (1998) (upholding a no-knock search when
the defendant had escaped from police custody, having violently attempted to do
so on previous occasions, and was believed to be hiding at a home suspected of
having a stash of guns); United States v. Gay, 240 F.3d 1222 (10th Cir. 2001)
(relying on information that defendant had jumped bail, had been involved in a
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prior police shootout, and was armed at all times); United States v. King, 222
F.3d 1280 (10th Cir. 2000) (relying on information that defendant sold drugs, that
he belonged to a gang, that he had previously displayed a willingness to use his
gun, and that another drug dealer might be present in the house with a gun);
United States v. Myers, 106 F.3d 936, 940 (10th Cir. 1997) (relying on knowledge
that defendant had been convicted of possession of a firearm and a firebomb, had
been involved in the firebombing of a police vehicle, had prior convictions for
burglary, theft and drug trafficking, and was suspected of current drug trafficking
activity); Dahlman, 13 F.3d at 1398 (relying on information that defendant
intended to shoot it out with police rather than be arrested.); cf. United States v.
Geraldo, 271 F.3d 1112, 1118 (D.C. Cir. 2001) (noting agreement among circuits
that the presence of a firearm coupled with information such as a suspects
violent tendencies, criminal record, or specific violent threats is enough to create
an exigency because the weapon might be used).
For example, in United States v. Colonna, 360 F.3d 1169, 1176 (10th Cir.
2004), we upheld a no-knock execution of a search warrant in an investigation of
narcotics-trafficking when defendant had been arrested 24 times with charges
including assault on a police officer, had been convicted of two felonies, and the
affidavit supporting the warrant stated defendant had been aggressive with police
officers in the past. More recently, our circuit overturned a district courts
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suppression of evidence seized pursuant to a no-knock warrant when the

defendant possessed firearms, was known to be dealing methamphetamine, and
had been arrested four prior times for domestic battery and battery on a lawenforcement officer which we concluded indicated a volatile, violent
disposition. United States v. Musa, 401 F.3d 1208, 1214 (10th Cir. 2005). We
found further support justifying the no-knock entry in the fact that children had
been observed playing in the area. Id. at 1214.
None of the elements that have supported dispensing with the knock and
announce requirement in our case law exist in the current factual circumstances.
Our inquiry remains flexible, but because the Supreme Court left to the lower
courts the task of determining the circumstances under which an unannounced
entry is reasonable under the Fourth Amendment, Ramirez, 523 U.S. at 70
(quotation omitted), we ordinarily expect the government to justify a no-knock
entry in light of our case law. Although the standard for reasonable suspicion is
not high, Richards, 520 U.S. at 395, requiring no more than a particularized and
objective basis, Ornelas, 517 U.S. at 696, for believing exigent circumstances
exist, the police in this case fail to provide such a basis to believe that knocking
and announcing their presence would have been dangerous or futile. See Moore,
91 F.3d at 98.

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We find particularly notable in the present case the fact that law
enforcement officers make no claim that Nielson was distributing narcotics or that
he had engaged in any prior violent conduct. Detective Coffman explicitly
testified to the fact that he had no information when executing the search warrant
that either Vigil or Nielson had engaged in past acts of violence. Moreover, the
prior search of Nielsons home resulted in no violence, and despite his silent
refusal to answer the door, he apparently cooperated after the police entered.
Although the police had evidence that a firearm was present, that fact by itself
does not demonstrate an increased risk beyond that normally faced by law
enforcement officers, especially where, as here, their information was that a
firearm was in a loft in the garage, and they had no information leading them to
believe that Nielson had interior access to the garage. Further reasons to believe
that knocking and announcing police presence would be dangerous or futile, such
as counter-surveillance activities, are also absent in this case. See United States
v. Cline, 349 F.3d 1276, 1289-90 (10th Cir. 2003). Without a prior history of
violence in interacting with police, without a record of prior convictions that
indicate a predilection towards violence, without a suspicion that defendant was
engaged in narcotics trafficking, or without any other exigent circumstances such
as children playing nearby or evidence of counter-surveillance activities, we

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cannot conclude that the police had sufficient justification in this case for a noknock warrant.
Law enforcement officers may have perceived certain additional risks
caused by the likelihood that Nielson possessed guns, at least in the garage, to
which he may have had access. However, perception of an increased risk does
not by itself establish the objective, reasonable suspicion that exigent
circumstances exist. In response to the courts own questions, Detective Coffman
testified that the belief that firearms are present is sufficient to justify a no-knock
search. 1 Our precedent has made clear that the mere statement that firearms are
present, standing alone, is insufficient, Moore, 91 F.3d at 96; Jenkins, 175 F.3d
at 1214 ([T]he mere likelihood that drugs or weapons will be found in the
searched premises alone will [not] support the reasonableness of a given waiting
period.). To hold otherwise would risk running afoul of the Supreme Courts
admonishment against creating exceptions to the knock-and-announce rule based
on the culture surrounding a general category of criminal behavior. Richards,
520 U.S. at 392. Such a blanket approach was clearly rejected by the Court in
Richards in favor of a case-by-case analysis, and we have similarly concluded that
We find this statement troubling in light of our prior observations that
[o]ur concern is heightened because this court seems to be reviewing the actions
of Kansas police executing knock and announce warrants with some
frequency. United States v. Jenkins, 175 F.3d 1208, 1215 (10th Cir. 1999)
(quoting United States v. McCloud, 127 F.3d 1284, 1288 n.3 (10th Cir. 1997)).
1

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to justify no-knock entries based on claims that officers executing narcotics

search warrants always have increased risks would expand the exigent
circumstances exception to such an extent [that it] would completely swallow the
rule. Moore, 91 F.3d at 98.
Although the potential presence of loaded weapons may heighten the risk to
law enforcement officers, where no other evidence of potential violence or danger
exists, we have made clear that such circumstances do not support reasonable
suspicion that exigent circumstances justify dispensing with the requirement that
police knock and announce their presence when executing a search warrant. 2 The
district court properly concluded that the police failed to demonstrate reasonable
suspicion that in this particular circumstance knocking and announcing their
presence would be dangerous or futile or would lead to the destruction of
evidence.
III
Nielsons Fourth Amendment rights were violated when the police failed to
comply with their constitutional duty to knock and announce their presence.
Nonetheless, the government argues that the officers actions were conducted in
[I]f the knock and announce requirement is to remain the rule rather than
the exception, we must still be able to tell the difference between the ordinary
risks to officer safety in serving search warrants and the risks to officer safety in
instances in which a no-knock entry is justified. Musa, 401 F.3d at 1219 (Henry,
J. dissenting).
2

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good faith. Because the remedy courts have fashioned for Fourth Amendment
violations is harsh, requiring the exclusion of potentially reliable evidence of
wrongdoing, we conduct a separate inquiry as to whether the exclusionary
sanction is appropriate. Designed to provide a deterrent to police misconduct, the
exclusionary rule is not mandated by the Fourth Amendment. See Leon, 468 U.S.
at 906-907. Thus, the Court has created a good-faith exception to imposition of
the exclusionary rule when law enforcement officers reliance on a magistrates
warrant is objectively reasonable. Id. at 922-24.
Although the analysis in Leon specifically addressed whether the
exclusionary sanction should be applied to warrants lacking probable cause to
justify a search, the government argues that good faith excuses its failure to
comply with the Fourth Amendment knock and announce requirement. See, e.g.,
United States v. Tisdale, 195 F.3d 70, 73 (2d Cir. 1999) (holding on Leon goodfaith grounds that defendant was not entitled to suppression of evidence seized
pursuant to a no-knock entry). Finding that the warrant application was so
lacking in a particularized and objectively reasonable suspicion that knocking and
announcing would be dangerous or futile, the district court denied the
governments request to apply the good-faith exception to its Fourth Amendment
violation. We review the district courts decision whether to apply the Leon

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good-faith exception de novo. United States v. Riccardi, 405 F.3d 852, 860 (10th
Cir. 2005).
In determining whether to suppress evidence our good-faith inquiry is
confined to the objectively ascertainable question whether a reasonably well
trained officer would have known that the search was illegal despite the
magistrate's authorization. Leon, 468 U.S. at 923, n.23. In Leon the Court
enumerated four general situations in which law enforcement officers who relied
on an invalid warrant could not benefit from the good faith exception, one of
which is relevant to the present case. The Court provided that a warrant may be
so facially deficient . . . that the executing officers cannot reasonably presume it
to be valid. Id. at 923. Specifically regarding no-knock warrants, the Supreme
Court has provided that [w]hen a warrant applicant gives reasonable grounds to
expect futility or to suspect that one or another such exigency already exists or
will arise instantly upon knocking, a magistrate judge is acting within the
Constitution to authorize a no-knock entry. United States v. Banks, 540 U.S.
31, 36 (2003). Thus, if the warrant in the present case is so facially deficient with
regard to whether reasonable suspicion that knocking and announcing police
presence would be dangerous or futile, then the good-faith exception may not be
applied.

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In response to questions from the court below, Detective Coffman

represented that the mere belief that firearms are present is sufficient to justify a
warrant from a state judge excusing compliance with the Fourth Amendments
knock and announce requirement. 3 Although [t]he practice of allowing
magistrates to issue no-knock warrants seems entirely reasonable when sufficient
cause to do so can be demonstrated ahead of time, Richards, 520 U.S. at 396 n.7,
Detective Coffmans affidavit fails to allege that sufficient cause exists in this
case to support a no-knock execution of the search warrant. Our holdings have
established that evidence of the presence of firearms, without more, is insufficient
to justify a no-knock entry, and so, necessarily the mere belief that firearms are
present would be insufficient as well. See Moore, 91 F.3d at 98 ([T]he mere fact
that firearms were present was insufficient to demonstrate exigent
circumstances.); Jenkins, 175 F.3d at 1214.
Officers must demonstrate that they have an objectively reasonable concern
that exigent circumstances exist. See Stewart, 867 F.2d at 584-85 (suppressing
evidence because no-knock entry not supported by objectively reasonable belief
that exigent circumstances existed); see also, United States v. Bates, 84 F.3d 790
(6th Cir. 1996) (affirming the district courts suppression of evidence seized in
It does not appear that Kansas provides statutory approval for no-knock
warrants. See Estate of Fuentes v. Thomas, 107 F. Supp. 2d 1288, 1298 (D. Kan.
2000).
3

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violation of the knock and announce requirement because belief that defendant
was likely to be violent was not objectively reasonable). The warrant in this case
is lacking in a sufficient indicia of reasonable suspicion that exigent
circumstances exist as to Nielsons potential for violence or as to the threat
posed by his past history of possessing firearms. 4 As we have already
discussed, the affidavit in support of the no-knock search warrant presented facts
that established past possession of firearms and small amounts of marijuana, and
present evidence of the same. Officers failed to present any evidence of past
violent behavior that would indicate a potential for present violence or futility, or
any other evidence that would provide a reason to believe Nielson or Vigil would
be violent. In light of our clear precedent providing that mere allegations of the
presence of a firearm are insufficient to support a no-knock entry, we cannot say
that law enforcement officers reliance on the state judges authorization was

We find instructive the Eighth Circuits reasoning that the good-faith

exception is perfectly suited for cases . . . when the judges decision was
borderline. United States v. Scroggins, 361 F.3d 1075, 1084 (8th Cir. 2004). In
that case, a borderline decision to authorize a no-knock entry was made
pursuant to an affidavit that alleged that the defendant was part of a large-scale
drug-trafficking organization, that he had prior arrests for narcotics and weapons,
that known drug dealers repeatedly visited the premises, and that officers had
found a round from an assault rifle in his trash. Id. By comparison to these
borderline averments, the district court in the present case could quite
reasonably state, as it did, we do not believe this is a close call.
4

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objectively reasonable. Therefore we conclude that law enforcement officers are

not entitled to a good-faith exception to suppression of evidence in this case.
IV
Because we agree with the district court that the circumstances presented in
this case did not excuse law enforcement officers from complying with the Fourth
Amendments knock and announce requirement, we AFFIRM.

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